After years of confusing and contradictory rulings, Florida's Supreme Court finally reigned in the scope of the Economic Loss Rule. In Indemnity Ins. Co. v. American Aviation, Inc., 891 So. 2d 532 (Fla. 2004), the Florida Supreme Court cogently limited the Economic Loss Rule. It held that the Economic Loss Rule does not bar a negligence action to recover solely economic damages where the defendant is not a product manufacturer or distributor. The Court also held that the Economic Loss Rule simply does not apply to any situation where there is no privity between the litigants.

In Indemnity, the owner of an aircraft, Profile, and the aircraft's insurer, Indemnity, brought suit against American Aviation for damages caused by negligent maintenance. American Aviation was not a manufacturer or distributor of the aircraft and there was no privity of contract. The United States District Court for the Middle District of Florida dismissed the tort actions brought by Profile and Indemnity against American Aviation, finding said claims barred by the Economic Loss Rule. Profile and Indemnity appealed the dismissal of the claims to the Eleventh Circuit. The Eleventh Circuit certified five questions to the Florida Supreme Court, which in turn rephrased the questions as follows:

WHETHER THE ECONOMIC LOSS DOCTRINE BARS A NEGLIGENCE ACTION TO RECOVER PURELY ECONOMIC LOSS IN A CASE WHERE THE DEFENDANT IS NEITHER A MANUFACTURER NOR DISTRIBUTOR OF A PRODUCT AND THERE IS NO PRIVITY OF CONTRACT.

In answering the rephrased certified question in the negative, the Florida Supreme Court reviewed the history of the Economic Loss Rule in Florida. The Court noted that the Economic Loss Rule has traditionally been applied in two circumstances: (1) where the parties are in contractual privity and one party seeks to recover damages in tort for matters arising from the contract and (2) where there is a defect in a product which causes damage to the product but causes no personal injury or property damage to other property.

The Court in Indemnity noted that the present matter did not involve an action in which the parties were in privity of contract, nor in which the defendant was a manufacturer or distributor of a product which damaged only itself. Rather, the matter involved plaintiffs who were claiming economic loss by the alleged negligence of a defendant with whom the plaintiffs were not in privity. As the Indemnity case did not fall under the two circumstances in which the Economic Loss Rule has traditionally been applied, the Court held that the Economic Loss Rule should not be applied. The Court reiterated that the Economic Loss Rule should continue to be applied to those cases which fall under these two categories, however, all other cases should be decided under traditional negligence principles.

The Indemnity decision is important because subrogation claims for negligence can now clearly be brought in Florida against those defendants who are not manufacturers or distributors of the product in question, or in privity with the plaintiffs. The Indemnity case should greatly expand the subrogation recovery opportunities available in Florida.

Same Publications

July 07, 2015PublicationImposition of Duty to Those with Easily Accessible and/or Specialized Knowledge

In denying AutoNation’s motion and finding that a duty existed, the Court reasoned that AutoNation's status as a General Motors dealer gave it easily accessible and specialized knowledge about the truck recall via the electronic VIN check. The Court explained that the “the decision to impose a legal duty is a multifaceted issue requiring courts to balance a number of factors,” including risk and utility.

Strategic thinking in prosecuting or defending product liability actions often mirrors the creativity, gut-check and fortitude to play the winning blackjack hand. As in blackjack, in the litigation game, it is often not how you start but how you finish that decides the winner. Though the cards often favor the house or your adversary, playing your cards to their maximum potential yet recognizing when it is necessary to fold, is vital to smartly beating the odds. Below is a practical checklist of 21 ways to win, bust or fold in your product liability game.

December 01, 2014PublicationThe Only Thing We Have To Fear Is Spoliation Itself … and Sanctions: How Spoliation Can Erode, or Even Destroy, the Potential for Recovery

Successful subrogation recoveries generally start with proper documentation and preservation of the relevant evidence. For this reason, every effort should be made to involve a subrogation professional at the earliest possible moment following a loss. However, early involvement is not always plausible. Additionally, at times, the circumstances surrounding the loss simply do not allow for the desired preservation of evidence. When the relevant evidence is not sufficiently documented or preserved, a claim for recovery is likely to be met with a spoliation defense.

October 01, 2014PublicationOptimizing the Use of Technology in Mediation

From cell phones, to the world wide web, to electronic mail, and beyond, over the past twenty years, we have experienced an unprecedented growth in technology, as well as a growing dependence in our day-to-day lives on these technologies. Accordingly, it is of little surprise parties and mediators alike have implemented the advancements in information technology to the mediation process. Various forms of technology can be utilized to assist parties from the initial stages of selecting a mediator to the actual day of the mediation conference, and all points in between. This article details a number of ways technology advancements have affected the way parties mediate.

June 26, 2014PublicationThe Language Was Not Enough: Florida Supreme Court Holds that the Standard "Transfer of Rights" Provision Does Not Abrogate the "Made Whole Rule"

The scope of these transferred rights had not been addressed in Florida until the Eleventh Circuit certified the issue to the Florida Supreme Court. In its recent opinion, the Florida Supreme Court clarified that a basic transfer of rights provision, without more, does not give the insurer a right of priority. Under such circumstances, priority of recovery remains dictated by Florida's common law "made whole doctrine."

In Property Subrogation, one of the most difficult damages situationsto deal with is a commercial loss where older equipment is destroyed and that equipment is integral to the operation of a facility. Oftentimes, the business decision is made to replace used equipment (which may not have a fair market value in the marketplace) with new equipment, to minimize the downtime and the associated business income loss. A recent Texas case may give property subrogators some ammunition to contest how those pieces of equipment get valued for recovery purposes.

As subrogation professionals, it is sometimes easy to overly focus on the liability issues in each case, leaving a thorough damages analysis for another day. However, it is a better practice to perform a complete evaluation of the legally recoverable damages early during the subrogation investigation, so that the true value of the claim can be ascertained and relayed to the subrogating insurer. This is especially so in cases where the business interruption portion of the loss is significant, since an error in proper quantification of the recoverable portion of the business interruption loss could dramatically change the overall valuation of a case -- both for settlement and trial purposes.

There comes a time at the end of every case involving retained evidence when the file handler, whether that be the adjuster, lawyer or third party claim handler, receives an evidence disposal form. Many times it is second nature to simply sign these forms and fax or email them back to the party storing the evidence. However, before doing so, thought needs to be given to any party that might have an interest in that evidence before it is disposed of, especially the insured. Otherwise, you may have just traded in a subrogation claim for the defense of a claim based on spoliation of evidence.

In an advantageous decision for the subrogation industry, the Florida Supreme Court recently narrowed the scope of the economic loss rule, and limited the rule’s application to only cases involving products liability. Broadly stated, the economic loss rule prohibits a tort action in certain circumstances when the damages incurred are wholly economic, and there is no other property damage or personal injury. Although inexplicably expanded over time, the recent decision curtails the expansive definition and returns Florida’s economic loss rule to its historical roots.

May 01, 2013PublicationAvoiding The Economic Loss Rule In Construction Claims

The Economic Loss Rule was initially developed in the products liability context....

However, over the years, courts have used the product liability concepts created in the early cases interpreting the Rule to expand the Rule's application to include construction claims, which has created problems in applying the Rule in non-product liability claims. "[T]the troublesome cases discussing the dreaded economic loss rule have usually arisen in the field of construction."

May 01, 2013PublicationStuck Between a Collapsed Wall and a Hard Place: The Failure to Establish the "Standard of Care" in a Negligence Claim

Generally, "to establish a claim for negligence, a plaintiff must show: (1) the defendant had a legal duty to conform to a certain standard of conduct; (2) the defendant breached that duty; and (3) the plaintiff sustained damage that was proximately caused by the defendant's breach.

October 01, 2012PublicationExperts – When to Discuss the Facts and When to Obtain a Report

How many times have you received an expert report without requesting one? It happens more than one would think. Hopefully, you are working with experts who do not prepare reports on their own without your request. If you are working with an expert for the first time, it would be wise to communicate with the expert to ensure that everyone is on the same page when it comes to a written report. After all, once an expert has issued a report, it cannot be re-written.

A question sometimes arises as to whether expert reports are protected under the work product doctrine when experts are retained by claims adjusters, as opposed to attorneys. For instance, when expert reports are issued to adjusters or another subrogation professional, the report can be deemed not protected, because the report is written during the normal course of an adjustment or investigative stage of a claim. On the other hand, when expert reports are directed to an attorney, the expert report usually has a better chance of being protected from subsequent disclosure, per the work product doctrine.

April 01, 2012PublicationWhat Nearly Two Decades as a Subrogation Attorney Has Taught Me about Product Safety

The other day when I was asked to write an article about "product safety" I pondered how to best approach this. As we all know, what is or is not a "safe product" is often in the eye of the beholder (or which side of the "v" you are on!). Is any product that fails even once an "unsafe product?" If 1,000,000 items have been manufactured and "only" 73 of them have failed, is that an "unsafe product?" What about 133 of them? If a product fails when it was being used improperly, but it was not a stretch for the manufacturer to have anticipated this "alleged misuse", is that an "unsafe product?" If a product has been tested by agencies and groups with an international reputation for such testing, and the product has passed, can that product be an "unsafe product?"

Insurance policies often include language that allows insurers to recover amounts they have advanced for the insured's benefit. For instance, if the insured's policy has a SIR, the policy may contain a provision similar to the following:

We shall have the right but no obligation, in all cases, to assume charge of the defens and/or settlement of any claim, and, upon our written request, you shall tender such portion of the SIR as we may deem necessary to complete the settlement of such claim.

February 10, 2012PublicationDoes the "Case-by-Case" Approach in Florida Apply Only on a Case-by-Case Basis?

The "Anti-Subrogation Rule" dictates that an insurer is generally precluded from seeking recovery against its own insured. While this premise on its face seems simple, a speCIal circumstance arises in the context of damage to leased property caused by a tenant's negligence, Where "the obvious intent of the parties [to a lease] was to shift the risk of daruages ... to an Insurer ... [the lessee] qualifies as an intended beneficiary under the Insurance policy;" and therefore, the insurer is prohiblted from subrogating against the lessee.1 However, the lease provisions are commonly unclear, if not contradlctory, as to which party-landlord or tenant-is to bear the risk of a loss to the leased premises, or whether the tenant is considered a "co-insured" under the landlord's property insurance policy. Most jurisdictions have been presented with these types of cases, and courts have implemented one of three recognized "analytic approaches," Recently, the Fifth District Court of Appeal of Florida addressed this very issue in Underwriters of Lloyds of London v. Cape Publications, Inc., 2011 WL 2415845 (Fla. 5th DCA 2011).

A great subrogation recovery can be defined as one that recovers the largest amount of money in the shortest period of time with the least amount of cost. Disputes between commercial entities are resolved daily, and not all of them require litigation. There are many ways to resolve a claim. Some claims are resolved through informal conversations between two adjusters. Other times, litigation and trial can be both necessary and unavoidable. However, in these economic times, most companies want to effectuate recoveries and close files as quickly as possible.

Under Florida's Workers' Compensation Statute, when an employee is injured in his/her Course and Scope of employment due to the negligence of a third party, the injured worker is able to pursue recovery for his/her injuries from the negligent third party; and the workers' compensation carrier is entitled to assert a lien in the amount of the benefits provided against any settlement or judgment obtained by the injured worker.

NASP's 12th Annual Conference, being held November 7-10 at the Gaylord Resort in Grapevine, Texas IS RIGHT AROUND THE CORNER. Can you believe it is less than two months away?!?! The Grapevine is a world-class facility located just outside Dallas. Just like in years past, this year's Conference will be a topnotch showcase for some of the best educational presentations the industry has to offer, no matter what the forum. There is no greater array of educational programs than the NASP Annual Conference. The entire program for the conference has been selected, and we have tried to limit the number of presentations slightly from year's past so that every attendee has a better chance of attending all of the programs they want, and not having too many "conflicting" presentations to decide upon.

Arbitration Forums, Inc. and Construction Defects Claim Managers Associations (CDCMA) have begun a new joint project to develop a special arbitration forum related to certain construction defect claims. This joint project is intended to develop awareness that certain types of construction defect claims can be arbitrated through arbitration forums

In Florida, like nearly all jurisdictions, an insurer may not pursue subrogation against its own insured. But when a tenant causes damage to its landlord's property, is the tenant treated as a presumptive "co-insured" under the landlord's property insurance policy? The answer, at least in Florida, is "it depends."

July 08, 2010PublicationMaryland Court Holds Waiver of Subrogation Contract Language Does Not Bar Recovery After Project Completion and Final Payment

In Hartford Underwriters Insurance Company v. Phoebus, a Maryland appellate court ruled that an insurance company's subrogation claim could proceed against a general contractor and subcontractor, despite subrogation waivers in the AlA form construction contract governing the contractors' work. In Phoebus, the plaintiff-insurer issued a property insurance policy to a restaurant's owner subsequent to the restaurant's construction. When a fire damaged the restaurant and it was determined that defective electrical wiring and components caused the fire, the insurer sought recovery from the contractors who performed electrical work during the restaurant's construction.

July 07, 2010PublicationFlorida Legislature Increases the Statutory Limits on Liability for Tort Claims Against the State and Its State Agencies

Historically, in Florida, tort claims against the state and its state agencies have been limited to $100,000 per claim or $200,000 per occurrence. On April 27, 2010, the Florida Governor approved an amendment to Florida Statute §768.28(5) thereby increasing the limit of tort liability for claims against the state and its state agencies. While the act does not take effect until October 1, 2011, claims arising after that date will now be subject to increased limits of $200,000 per claim or $300,000 per occurrence

In 1923, the Court of Appeals for the District of Columbia, affirming the exclusion of an expert witness at trial, stated:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

In Killings v. Enterprise Leasing Company, Inc.,1 the Alabama Supreme Court recently held that a Plaintiff may proceed with a claim of spoliation against a third party responsible for negligently discarding necessary evidence in an underlying case.

October 07, 2008PublicationLanding the Knockout Punch: Contacting Another Party's Current And Former Employees Within the Ropes

Winning litigation requires that you and your counsel land the devastating uppercuts at the key moments in the fight. Big opportunities for critical testimony and evidence exist by pursuing permissible ex parte contacts with another party's current and former employees. The ethical ropes and practical tips for effectively contacting and interviewing such witnesses are discussed below.

Entry of errant water into a building or other structure can lead to serious mold problems, physical damages and substantial property and business interruption losses. This article provides a roadmap on developing viable recovery claims against restorative drying contractors who were involved in improper and careless restoration and remediation of water damaged property. As in any garden-variety tort claim, it is imperative that your counsel appreciate the critical importance of identifying the target contractor's vulnerable liability exposures.

October 01, 2007PublicationAlabama Limits Subrogation Rights Under Wrongful Death Statute

The Supreme Court of Alabama recently limited the rights of a workers' compensation insurer seeking to recover medical expenses paid on behalf of a worker who later died as a result of his injuries. Alabama's unique wrongful death statute, which allows for the recovery of punitive damages only, precludes an insurer from recovering medical expenses incurred prior to the worker's death.

The word "hurricane" originates from the Spanish word, "Huracán," for the ancient Mayan "storm god." No doubt the Mayans suffered frequently from Huracán's wrath. But unlike the Mayans, recent storms have led insurers to vigorously pursue subrogated hurricane claims. This article will explore issues associated with the successful pursuit of subrogation claims arising from hurricanes.

February 01, 2007PublicationFlorida Legislature AGAIN Changes the Requirements for Making a Construction Defect Claim

Florida Governor Jeb Bush initially approved Senate Bill 1286 on May 23, 2003. The initial version of Chapter 558 of the Florida Statutes (hereinafter identified as "the Statutes") set forth the requirements for making a claim for defects related to the construction of homeowner property. The authors of this article published a summary of the law in the Winter 2003-2004 issue of the Subrogator. In 2005, the Statutes were amended by the Florida Legislature to make compliance more practical for both claimants and contractors. The authors published a summary of these changes in the Spring/Summer 2005 issue of the Subrogator.

February 01, 2007PublicationFlorida's Legislature Abolishes Joint and Several Liability

Effective April 26, 2006, the Florida Legislature eliminated the last vestige of joint and several liability. Florida has now joined the minority of jurisdictions that have completely abolished joint and several liability. Although this move has brought dramatic change and controversy, it was no surprise. The attempt at abolition actually began nearly twenty years ago and has been heavily lobbied by Florida's "Big Businesses." This article will address the impact of the elimination of joint and several liability, and the effect this change in the law will have on subrogation in Florida.

The word "hurricane" originates from the Spanish word, "Huracán," for the ancient Mayan "storm god." No doubt the Mayans suffered frequently from Huracán's wrath. But unlike the Mayans, recent storms have led insurers to vigorously pursue subrogated hurricane claims. This article will explore issues associated with the successful pursuit of subrogation claims arising from hurricanes.[1]

October 01, 2006PublicationSomething Old...Something New...: the Availability of "Sentimental Value" Damages in Courts Throughout the United States

"My grandfather's law diploma means the world to me. It was framed and given to me after his death by my family, as I was the only child to become an attorney as well." These self professed statements of value are heard over and over by subrogation attorneys throughout the United States during painstaking conferences with the insured to determine the value of his or her uninsured losses after a catastrophic loss. Quite simply, attorneys often attempt to assess the "value" of a certain personal items of the insured, when actually, no realistic fair market value exists. Such items are considered "irreplaceable" by the insured, and consist of photographs, family heirlooms, wedding memorabilia, and family documents such as marriage licences.

Over a decade has passed since the U.S. Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579 (1993), and it is time to evaluate where we've been, where we are, and where we are headed on the admissibility of expert opinion testimony in fire and explosion cases.

High-level executives are frequently sought to be deposed because of their unique corporate roles for, inter alia, policy making, corporate governance and implementing policy compliance and corrective actions. On a tactical basis, the executive deposition is pursued so that your adversary's "figurehead" directly feels the "hot buttons" of your case, real-time, without layers of filtering and spin. "Top-dog" depositions, commonly called "apex depositions," cover a wide range of executives, including CEOs, presidents and other senior management positions.

May 01, 2006PublicationAlternative Ways To Use Evidence Of "Other Conduct" That Would Otherwise Not Be Admitted

In developing your case, as plaintiff or defendant, it is important to appreciate the various alternative ways for opening the door to "other conduct" evidence to prove relevant facts at issue. Below is a synopsis of strategic methods and insights for proffering evidence of character for a non-propensity purpose, habit, subsequent remedial measures and prior occurrences/failures.

Until 2003, Florida courts recognized an independent tort of spoliation for both first and third party claims. However, that all began to change with the Fourth District Court of Appeal's decision in Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003). In Martino, the plaintiffs filed a premises liability action against Wal-Mart, alleging that Mrs. Martino was injured while shopping at a Wal-Mart store when her shopping cart collapsed. Later, when Wal-Mart could not produce the shopping cart nor the security video that may have recorded the incident, the plaintiffs added a claim against Wal-Mart for spoliation of evidence. Wal-Mart filed a motion to dismiss the plaintiff's spoliation claim, which the trial court granted.

October 01, 2005PublicationFire Department Negligence Not Considered Intervening Cause in Franklin County, Ohio

This case involves a subrogation action following payments made by a commercial property carrier to its insured as a result of a fire that occurred at an insured apartment complex located in Franklin County, Ohio. The fire occurred on January 28, 2003, after one of the tenants in the apartment complex placed hot ashes from his fireplace into a cardboard box, and then left the box unattended inside of his unit. Approximately 30 minutes later, a fire ignited. The tenant quickly called the fire department, who responded and extinguished the fire. The fire damage was confined to the tenant's unit which suffered approximately $10,000 worth of damage.

May 03, 2005PublicationHow "What We Learned in Little League" Paves the Way for Winning Litigation!"

As in baseball, whether being the batter, pitcher, or outfielder, successful litigation requires a strong belief and conviction that one has the power to shape reality. Certainly, without the batter's confidence that he or she will hit the ball, irrespective of its speed, twists or turns, few home runs would be made, let alone "singles or doubles"

April 01, 2005PublicationNew Amendments to Florida Law For Making Claims Against Contractors For Construction Defects

Florida's Construction Defect Statute, F.S. § 558.001 et seq. ("Construction Defect Statute"), first became effective on May 27, 2003. This law drastically changed how claims for construction defects are to be made by homeowners against contractors in Florida.

April 01, 2005PublicationFlorida's "Made Whole" Doctrine: Returning A Portion of the Insured's Deductible Is Permissible – For Now!

Per Florida's Made Whole Doctrine, insurers need only reimburse their insureds to the extent of their insured's legally recoverable loss. In the recent case of Monte De Oca v. State Farm Fire & Casualty Co., ---So.2d---, 2004 WL 2955008 (Fla. 3d DCA 2004), the Third District Court of Appeal supported the partial return of a deductible to an insured based on the insured's comparative negligence. This case is significant because it clarifies that an insurer, in Florida, does not violate the Made Whole Doctrine when the insurer returns only a prorated portion of the deductible to the insured due to the insured's comparative negligence.

The Hilton Hotel in Austin, Texas will truly be "The House of Subrogation" from November 13 through 16, when over 1,200 subrogation professionals from around the globe assemble for the NASP Annual Conference. And this year's conference is expected to be even bigger, better and more alive than ever before!

January 01, 2005PublicationSpoliation of Evidence - Limiting the Duty to Preserve

A summary of Killings v. Enterprise Leasing Company, Inc., 2008 WL 4967412 (Ala. 2008). A recent case from the Supreme Court of Alabama. In Killings v. Enterprise Leasing Company, Inc.,1 the Alabama Supreme Court recently held that a Plaintiff may proceed with a claim of spoliation against a third party responsible for negligently discarding necessary evidence in an underlying case.

October 01, 2004PublicationForcing the Issue: Virginia Courts Begin to Expand Recoveries in Tort Between Parties to a Contract

When subrogating against an adverse party having a contractual relationship with your insured, it is routine to face the argument that your damages are barred by the economic loss rule. Most jurisdictions have carved out an exception to the sometimes harsh results that can flow from the operation of this rule. One such exception is the “other property” exception, which typically allows for tort recovery when the damaged “other property” is not a subject of the contract.

Experts oftentimes make or break cases. As knowledge and science have grown, so has the range of experts that parties call upon to advocate their cause. Not only must a party always look to bolster one's own expert case, a party must simultaneously be mindful of the need to undercut your adversary's expert. As the client, you want to ensure that your assigned counsel appreciates the following practical ways for tackling the opposing expert during the discovery process